United States Department of Agriculture, Forest Service, Monogahela National Forest (Agency) and National Association of Government Employees, Local R4-88 (Union)

64
FLRA No. 197

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_______

UNITED STATES DEPARTMENT OF
AGRICULTURE

FOREST SERVICE

MONONGAHELA NATIONAL FOREST

(Agency)

and

NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES

LOCAL R4-88

(Union)

0-AR-4477

_______

DECISION

July 29, 2010

_______

Before the Authority: Carol
Waller Pope, Chairman, and

Thomas M. Beck and Ernest
DuBester, Members

I. Statement
of the Case

This
matter is before the Authority on exceptions to an award of Arbitrator Jerrold Mehlman
filed by the Agency under § 7122(a) of the Federal Service Labor-Management
Relations Statute (the Statute) and part 2425 of the Authority’s Regulations.
The Union filed an opposition to the Agency’s exceptions.

The
Arbitrator granted the Union’s grievance, which dealt with reimbursement for
the cost of protective footwear. The Arbitrator found that the parties’
collective bargaining agreement (CBA) mandated such reimbursement, and that
employees similarly situated to the grievant should also be reimbursed. Further,
the Arbitrator determined that reimbursement should be at the level determined
pursuant to procedures in the CBA.

For
the reasons that follow, we deny the Agency’s exceptions.

II. Background
and Arbitrator’s Award

A. Background

The
workers involved are non-professional employees whose duties include coordinating
with contractors to plan activities such as building roads for timber cutting and
logging purposes in a national forest. Award at 1. They wear various types of
“personal protective equipment” (PPE) on the job. Id. at 2. This PPE
includes safety footwear consisting of a steel-toed, high-ankle boot “to
protect the employee’s ankle and leg from slipping or sliding on the uneven
terrain endemic to the forest floor . . . [and] to protect
against hazards at construction sites[.]” Id.

Under
the parties’ previous CBA, employees were reimbursed up to $90 a year for
protective footwear purchased for use on the job. Id. The CBA relating
to the grievance also provides reimbursement for protective footwear that can
be classified as PPE, but states no maximum amount of reimbursement. Instead,
the CBA calls for the formation of a “Technician Safety Advisory Committee” (TSAC)
to study and recommend a maximum reimbursable amount for PPE. Id.

In
April 2008, the grievant submitted her request to be reimbursed for the cost of
her protective footwear, consisting of high ankle steel-toed boots. Id.
Shortly afterwards, the TSAC submitted its recommendation that employees be
reimbursed for protective footwear in a range of $120 to $200 a year. Id.
However, the Agency rejected this recommendation because, in the Agency’s view,
reimbursement was not “legally required.” Id.

As
a result of its determination, the Agency denied the grievant reimbursement for
her protective footwear. She subsequently filed a grievance requesting reimbursement,
interest, an apology from the Agency, and that the Agency stop violating the
agreement. Id. at 3. The Agency denied the grievance on the basis that
reimbursement for protective footwear was not legally required. Id. at
6. The Agency explained that, because the grievant’s boots were of the type
she could wear to and from work, the Agency was exempt from any Occupational
Safety and Health Administration (OSHA) requirement that the Agency furnish the
boots. Id. The matter was submitted to arbitration.

B. Arbitrator’s Award

At arbitration, the Arbitrator formulated
the issues as follows:

1.Whether under the terms of Article
19, Section 6 of the [CBA], [the Agency] is obligated to reimburse the grievant
for protective footwear (boots) she purchased.

2.What will be the applicability of
this grievance to other employees in the unit?

3.What shall be the remedy should
the grievance be sustained?

Id.
at 2.

The
Arbitrator found that the CBA mandated reimbursement for the cost of the
grievant’s protective footwear. Id. at 5-6. As the Arbitrator
interpreted the CBA and applicable OSHA guidance, the Agency was obligated to
supply PPE to employees to protect employees from hazardous conditions
encountered during the performance of their official duties. Id. at 5.
The Arbitrator also found that “[t]he grievant’s need [for] the boots as a PPE
has not been an issue” and “[t]here is no dispute as to the need of such
footwear for safety purposes.” Id. at 6, 2.

The
Arbitrator rejected the Agency’s assertion that an OSHA regulation exempted it
from any obligation to reimburse the grievant. The regulation stated that an
agency need not pay for any PPE that is personal in nature and that an employee
could wear both on and off the job. Id. at 6. Analyzing the
regulation, the Arbitrator noted additional language in the regulation providing
that the issue of reimbursement for such PPEs “may be left to labor-management
negotiations.” Id. Finding that the Agency had agreed to such
reimbursement in the CBA, the Arbitrator concluded that the CBA mandated the
reimbursement the grievant sought. Id.

Furthermore,
the Arbitrator concluded that “the definition of a grievance [in the CBA] allowing
an employee to challenge an interpretation of the agreement is broad enough to
cover employees similarly situated to grievant who may submit protective
footwear purchases for reimbursement.” Id.

As
a remedy, the Arbitrator awarded the grievant and similarly situated employees
reimbursement for their PPE footwear purchases. Id. at 7. The
Arbitrator also determined that, pursuant to the CBA, the recommendation of the
TSAC regarding the amount of reimbursement available to the employees should be
reviewed and adopted by the parties. Id. Finally, the Arbitrator found
that the grievant was not entitled to an apology from the Agency or to interest
on the cost of her protective boots. Id.

III. Positions of the
Parties

A. Agency’s
Exceptions

The
Agency claims that the Arbitrator’s award is contrary to law and Agency
regulations, that the Arbitrator exceeded his authority, and that the award
fails to draw its essence from the CBA.

Regarding
its contrary to law and regulation claim, the Agency cites Comptroller General decisions
stating that employees are required to present themselves for duty properly
attired. Exceptions at 2. The Agency also cites provisions in its Forest
Service Manual (FSM) that the Agency contends make clear that “properly
attired” “means . . . high-topped, leather, lace-up boots.” Id. (citing
FSM 6700). Finally, taking issue with the Arbitrator’s finding that the need
for steel-toed boots for safety purposes was undisputed, see Award at 2,
the Agency argues that the grievant’s position does not require her to wear steel-toed
boots. Exceptions at 2-3.[1]

Regarding
its exceeds authority exception, the Agency asserts that the Arbitrator erred
when he found that the award covers other similarly situated employees. Id.
at 5. The Agency contends that, because the grievance does not reference any
other employees who had purchased boots, the Arbitrator could not find that these
other employees are also covered by the award. Id. In addition, the
Agency objects to the Arbitrator’s finding that the TSAC recommendation on
reimbursement limits should be adopted by the parties. Id. The Agency argues
that the issue of adopting the TSAC recommendation was also not included in the
grievance. Id. at 5-6.

As
to whether the award fails to draw its essence from the CBA, the Agency disputes
the Arbitrator’s finding that reimbursing employees for the cost of safety
footwear is mandated by the contract. Id. at 4. The Agency argues that
this ignores clear language in the CBA indicating otherwise. Id. at 3-5.
The Agency also objects that the Arbitrator incorrectly referenced OSHA
regulations when he analyzed and applied the CBA. Id. at 4.

B. Union’s
Opposition

The Union argues that the
Arbitrator’s award is not contrary to law, rule, or regulation. As a threshold
matter, the Union argues that the Agency’s exceptions do not identify any specific
law, rule, or regulation to which the award is allegedly contrary. Opp’n at
4. In addition, the Union cites precedent establishing that CBAs govern the
disposition of matters to which both CBAs and agency regulations apply. Id.
at 5. Because the plain wording of the CBA provides for reimbursement, the
Union argues that its members are therefore entitled to such reimbursement. Id.
Furthermore, the Union contends that the Comptroller General decisions cited by
the Agency are not on point. Id.

The
Union also asserts that the Arbitrator did not exceed his authority. Id. at
8. The Union points out that the parties allowed the Arbitrator to frame the
issues, and argues that the Arbitrator resolved only those issues in his
award. Id. at 8, 9. In particular, the Union claims that, consistent
with the issues the Arbitrator framed, the Arbitrator properly applied the
remedy to all bargaining unit employees. Id. at 9. Similarly, the
Union contends that, because the parties authorized the Arbitrator to decide

the
appropriate remedy, the Arbitrator did not exceed his authority when he ordered
the Agency to reimburse employees in accordance with recommendations of the
TSAC, as reviewed and adopted by the parties. Id. at 10

Finally,
the Union argues that the Arbitrator’s award does not fail to draw its essence
from the CBA. Id. at 6. Citing Authority case law, the Union asserts that
the Agency’s belief that the Arbitrator misinterpreted the CBA is not enough to
constitute an essence exception because the parties bargained for the Arbitrator
to interpret the CBA. Id. Specifically, in the Union’s view, the Arbitrator
properly found that the CBA requires reimbursement for safety footwear as PPE.
Id. In addition, the Union points out that the CBA expressly provides
that reimbursement for PPE “will be provided . . . in accordance with
guidelines recommended by the [TSAC].” Id. at 7.

IV. Analysis and
Conclusions

A. The award is not contrary
to law, rule, or regulation.

Section 7122(a)(1) of the Statute
provides that an arbitration award will be found deficient if it conflicts with
any law, rule, or regulation. For purposes of § 7122(a)(1), the Authority has
defined rule or regulation to include both government-wide and governing agency
rules and regulations. U.S. Dep’t of Agric., Animal & Plant Health
Inspection Serv., Plant Protection & Quarantine, 51 FLRA 1210, 1216
(1996). However, when both a collective bargaining agreement and an
agency-specific (as opposed to government-wide) rule or regulation apply to a
matter, the negotiated agreement governs the matter’s disposition. U.S.
Dep’t of the Army, Ft. Campbell Dist., Third Region, Ft. Campbell, Ky., 37
FLRA 186, 195 (1990) (Dep’t of the Army) (“[a]gency rules and
regulations may only govern the disposition of matters to which they apply
. . . when the rules and regulations do not conflict with provisions
of an applicable collective bargaining agreement.”).

When
a party’s exception involves an award’s consistency with law, rule, or
regulation, the Authority reviews any question of law raised by an exception
and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995).
In applying a de novo standard of review, the Authority assesses whether
the arbitrator’s legal conclusions are consistent with the applicable standard
of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making
that assessment, the Authority defers to the arbitrator’s underlying factual
findings. See id.

The
Agency claims that the Arbitrator’s award is contrary law, rule, or regulation
on two bases. First, the Agency argues that the award is inconsistent with two
Comptroller General decisions that discuss the requirement that employees
present themselves for work properly attired. Exceptions at 2. Second, the
Agency relies on its Forest Service Manual’s statement that, for fieldwork,
“appropriate dress . . . means . . . high-topped, leather,
lace-up boots.” Id. In the Agency’s view, these authorities contradict
the Arbitrator’s finding that “[t]here is no dispute as to the need [for]
[steel-toed] footwear for safety purposes.” Id. (quoting Award at 2).
The Agency’s claims do not have merit.

The
award is not contrary to either Comptroller General decision cited by the
Agency. Both decisions are clearly inapplicable. One of the cited decisons,
published in 1955, finds that the Postal Service may not provide mechanics in
its employ with coveralls under the specific provisions of the Post Office’s
then-current appropriations statute. See B-123223 *2 (June 22, 1955)
(citing § 13 of the Act of August 2, 1946, 60 Stat. 809,
5 U.S.C. 118G). The Comptroller General’s conclusion, that “in the
absence of specific statutory authority, general Post Office appropriations for
supplies and equipment are not available” to purchase coveralls, resolves the
issue of the Post Office’s budget authority under the particular statutory
framework that the Comptroller General applied. The second Comptroller General
decision cited by the Agency, Matter of: Purchase of Down-Filled Parkas,
63 Comp. Gen. 245 (1984), has a similarly limited focus.

Neither
decision applies in this case. In contrast to the issues resolved by the
Comptroller General in the cited cases, there is no question in the instant
case about the Agency’s budgetary authority to pay for PPE that meets the
criteria in the CBA. Furthermore, neither Comptroller General decision has any
bearing whatsoever on the Arbitrator’s finding challenged by the Agency, that “[t]here
is no dispute as to the need [for] [steel-toed] footwear for safety purposes.”
Award at 2.[2]
Accordingly, the Comptroller General decisions on which the Agency relies do
not provide a basis for concluding that the award is contrary to law.[3]

The
award is also not contrary to the rules set forth in the Forest Service
Manual. This publication provides rules specific to the Forest Service. As
stated above, it is well established that when a CBA and an agency-wide rule or
regulation both apply to a matter, the CBA governs the matter’s disposition. Dep’t
of the Army, 37 FLRA at 194-95. Here, the CBA, as interpreted and applied
by the Arbitrator, directs the Agency to reimburse bargaining unit members for
the cost of their steel-toed boots up to the maximum recommended by the TSAC,
as reviewed and adopted by the parties. In these circumstances,, the CBA, not the
Forest Service Manual, governs. Consequently, the

Forest
Service Manual also does not provide a basis for granting the Agency’s contrary
to law exception.[4]

For
these reasons, the Agency’s contrary to law exception is denied.

B.
The Arbitrator did not exceed his authority.

Arbitrators
exceed their authority when they fail to resolve an issue submitted to
arbitration, resolve an issue not submitted to arbitration, disregard specific
limitations on their authority, or award relief to those not encompassed within
the grievance.See U.S. Dep’t of Def., Army & Air Force Exch.
Serv., 51 FLRA 1371, 1378 (1996).

The
Agency claims that the Arbitrator exceeded his authority for two reasons.
First, the Agency argues that the Arbitrator exceeded his authority when he
determined that all employees similarly situated to the grievant should also be
reimbursed for the cost of their protective footwear. Exceptions at 5. In
support, the Agency asserts that there was no mention in the grievance that any
other employees were affected. Id.

The
Agency’s exception is not supported by Authority case law. Under Authority
precedent, in the absence of a stipulation by the parties, arbitrators are
accorded substantial deference in the formulation of issues to be resolved in an
arbitration proceeding. See, e.g., AFGE, Local 1637, 49 FLRA 125,
130 (1994). Accordingly, it is not determinative that the grievance did not
specifically include the issue of relief for other unit employees.[5]
Furthermore, there is no evidence that the parties stipulated the issues in
this case.

As
relevant here, the Arbitrator stated the issue as: “What will be the
applicability of this grievance to other employees in the unit?” Award at 2. The
Arbitrator’s award concerning reimbursement for employees similarly situated to
the grievant is responsive to the issue he formulated. Consequently, the Agency
has not demonstrated that the Arbitrator resolved an issue not submitted to
arbitration. See AFGE, Local 1637, 49 FLRA at 130-31 (upholding an
award on the basis that it was responsive to the issue formulated by the
arbitrator). Accordingly, this exceeds authority exception is denied.

A
similar disposition is appropriate for the Agency’s second exceeds authority
exception, concerning the Arbitrator’s reference in his remedy to the TSAC’s
recommendation on reimbursement levels. Exceptions at 5-6. Once again, the
Agency bases its exception on the argument that the matter resolved by the
Arbitrator was not part of the grievance. Id.

As
discussed previously, it is the issues framed by the Arbitrator, not the
grievance’s content, that is determinative in analyzing whether an arbitrator
exceeded his authority. The part of the Arbitrator’s issue statement
concerning remedy encompasses his ruling concerning the TSAC’s recommendation.
In this connection, the issues framed by the Arbitrator included: “What shall
be the remedy should the grievance be sustained.” Award at 2.

Resolving
the remedy issue, the Arbitrator ruled that the reimbursement for PPE footwear
purchases due the grievant and other employees should be determined pursuant to
the agreement; that is, at the level recommended by the TSAC, as reviewed and
adopted by the parties. The TSAC’s function under the CBA includes the
responsibility to “determine” and “recommend” a minimum and maximum
reimbursement amount for PPE expenditures. See id. at 4. In relying on
the TSAC recommendation process to determine reimbursement levels, the award is
responsive to the remedy issue. Accordingly, for the reasons discussed above, the
Authority denies this exceeds authority exception as well.

Therefore,
the Agency’s exceeds authority exceptions are both denied.

C.
The award does not fail to draw its essence from the CBA.

In
reviewing an arbitrator’s interpretation of a collective bargaining agreement,
the Authority applies the deferential standard of review that federal courts
use in reviewing arbitration awards in the private sector. See 5 U.S.C.
§ 7122(a)(2); AFGE, Council 220, 54 FLRA 156, 159 (1998). Under
this standard, the Authority will find that an arbitration award is deficient
as failing to draw its essence from the collective bargaining agreement when
the appealing party establishes that the award: (1) cannot in any rational way
be derived from the agreement; (2) is so unfounded in reason and fact and so
unconnected with the wording and purposes of the collective bargaining
agreement as to manifest an infidelity to the obligation of the arbitrator; (3)
does not represent a plausible interpretation of the agreement; or (4)
evidences a manifest disregard of the agreement. SeeU.S. Dep’t of
Labor (OSHA), 34 FLRA 573, 575 (1990). This
standard and the private sector cases from which it is derived make it clear
that an arbitrator's award will not be found to fail to draw its essence from the agreement
merely because a party believes that the arbitrator misinterpreted the
agreement. See id. at 575-76. The courts defer to the arbitrator’s
interpretation of the collective bargaining agreement “because it is the
arbitrator’s construction of the agreement for which the parties have
bargained.” Id. at 576.

The
Agency claims that the Arbitrator erroneously concluded that reimbursement is
mandated by the contract and that this ignores clear language in the CBA
indicating otherwise. Exceptions at 3-5. Specifically, the Agency argues that
the CBA requires that, to be reimbursable, a PPE must be specified in an employee’s
Job Hazard Analysis (JHA). Id. at 4. The Agency contends that the
Arbitrator ignored this requirement.

The
Agency has failed to demonstrate that the award fails to draw its essence from
the parties’ agreement. Article 19, § 6 provides, in pertinent part:
“Personal Protective Equipment (PPE) as required by applicable OSHA standards
to protect employees from hazardous conditions encountered during the
performance of their official duties, will be provided to employees required to
wear specific PPE as determined by a JHA.” Award at 3-4.

The
Arbitrator’s conclusion that “reimbursement is mandated by the contract” rested
on a number of bases. Id. at 6. Significantly, the Arbitrator found that
“[t]he grievant’s need [for] the boots as a PPE has not been an issue” and “[t]here
is no dispute as to the need for such footwear for safety purposes.” Id.
at 6, 2. In addition, the Arbitrator noted that pertinent OSHA regulations did
not prohibit an employer from agreeing in collective bargaining to reimburse
employees for PPE. Id. at 6.

The
Agency fails to explain why it was irrational, unfounded, implausible, or in
manifest disregard of the agreement for the Arbitrator to find that Article 19,
§ 6 does not apply where it was undisputed that the grievant needed the
protective footwear as PPE for safety purposes. Although such a need is ordinarily
documented in a JHA, in this case the Arbitrator found that the existence of
such a need was not an issue because the need was undisputed. Moreover, as the
Union notes, see Opp’n at 8, the most recent JHA on file for the
grievant’s position requires “work boots with ankle, shank & toe
protection.” Exceptions, Ex. 8. Nothing in the Agency’s exceptions or
otherwise provides any basis for finding that the Arbitrator’s construction and
application of the CBA did not rest, in part, on this record evidence. Accordingly,
this essence exception is denied.

The
Agency also argues that the award fails to draw its essence from the CBA
because the Arbitrator discussed and relied on OSHA regulations. Exceptions at
4. The Agency’s objection does not establish that the award is deficient on
essence grounds. The Arbitrator cites OSHA regulations twice in discussing his
award. The Arbitrator’s first reference cites OSHA regulations to explain the
meaning of the term PPE. See Award at 5. The Arbitrator’s second
reference responded to the Agency’s argument that it was exempt under OSHA
regulations from being required to reimburse the grievant for her protective
footwear. See id. at 6. In response, the Arbitrator merely notes that,
under those regulations, the issue of employer PPE reimbursement “may be left
to labor-management negotiations.” Id. at 6. Neither of these
references demonstrates that the award, which was based on the Arbitrator’s
consideration of the CBA and his factual findings, is not entitled to the
deference due an arbitrator on essence issues. Accordingly, we also deny this
essence exception.

Therefore,
both of the Agency’s essence exceptions are denied.

V. Decision

The Agency’s exceptions are
denied.

[1] The Agency also argues that the
award violates management rights. Exceptions at 5. As discussed below, this
claim was not raised in proceedings before the Arbitrator and is therefore not
addressed on its merits in this decision.

[2] Indeed, Matter of
Down-Filled Parkas is marginally supportive of the Arbitrator’s
determination in the instant case. In Matter of Down-Filled Parkas, the
Comptroller General held that the Department of the Interior could use
appropriated funds to purchase down-filled parkas for employees working in cold
climates. The Comptroller General reached this conclusion in part because the
parkas qualified as PPE under OSHA and OSHA implementing regulations. Under
the OSHA regulations cited by the Comptroller General, qualifying PPE was PPE
“necessary because ‘hazards of processes or environment’ could cause injury or
physical impairment.” Id. (quoting 29 C.F.R. §1910.132(a) ). The
Arbitrator’s decision in the instant case reaches an analogous conclusion,
approving reimbursement for PPE required for safety reasons.

[3] We note that,
in any event, decisions of the Comptroller General are not binding on the
Authority. “Although
a Comptroller General opinion serves as an expert opinion that should be
prudently considered, a prior assessment of the Comptroller General is not one
to which deference must be given.” AFGE, Local 1458, 63 FLRA 469,
471 (2009) (citations omitted).

[4] The Agency
also argues that the Arbitrator infringed its management rights when he
required the parties to review and adopt the TSAC’s recommendation. Exceptions
at 5. We construe this as a contrary to law exception. However, the Agency
does not specify which right it believes was infringed. Furthermore, there is
no evidence in the record indicating that the Agency raised this issue in the proceedings
before the Arbitrator. Therefore, under § 2429.5 of the Authority’s
Regulations, the Authority will not consider this exception.